[Cite as State v. Boyd,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Sheila G. Farmer, J. -vs- : : Case No. 12CA23 GAVON J. BOYD : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2011 CR 0631 H

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

DATE OF JUDGMENT ENTRY: March 27, 2013

APPEARANCES:

For Appellant: For Appellee:

OFFICE OF THE OHIO PUBLIC JAMES J. MAYER, JR. DEFENDER RICHLAND COUNTY PROSECUTOR KRISTOPHER A. HAINES JOHN C. NIEFT 250 East Broad Street, Ste. 1400 38 South Park St. Columbus, OH 43215 Mansfield, OH 44902 [Cite as State v. Boyd,

.]

Delaney, P.J.

{¶1} Appellant Gavon J. Boyd appeals from the February 27, 2012 judgment

entry of conviction and sentence in the Richland County Court of Common Pleas.

Appellee is the State of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose on September 5, 2011 on King Street in Mansfield,

Ohio. Sommer Burdette was driving her own car with her friend and neighbor Misty

Taylor in the front passenger seat. Burdette purportedly had $2400 hidden inside her

bra. She stopped at her grandmother’s house on Arnold Street to pick up additional

cash while Taylor waited in the car.

{¶3} Burdette got back into her car and pulled out of the driveway. She

turned onto King Street and slowed down due to a group of people in the roadway. A

man jumped into the back seat of Burdette’s car and put a knife to her throat, stating

“Bitch, I’m going to kill you, give me everything you got.” Burdette did not see the

man’s face while he was in the car because she faced forward. The man kept the

knife at Burdette’s throat. Burdette grabbed at the knife to push it away, badly slicing

her hand on its jagged edge.

{¶4} He told both girls to pull down their shirts to check whether they had

anything hidden in their bras. Burdette gave up her purse, phone, and all of her cash.

Taylor gave up her purse and phone and testified she had no cash with her that day.

Taylor placed her belongings and Burdette’s into a backpack-style “bookbag” the man

carried. Richland County, Case No. 12CA23 3

{¶5} After robbing the girls the man jumped out of the car, taking the keys.

He threw the keys and told Burdette, “Bitch, there’s your keys.” Burdette ran to grab

the keys, jumped back in the car, and drove away. She testified the assailant briefly

chased after the car and she saw his face; she did not recognize him. He then

continued walking on along the road.

{¶6} Burdette soon encountered Brian Nelson, an Ohio State Highway Patrol

trooper, in his cruiser and flagged him down. She told Nelson what happened and

described the assailant as a tall, skinny black male wearing dark jeans, a dark leather-

type coat, a white t-shirt, a hood, and carrying a gray and black bookbag and a large

knife.

{¶7} Nelson noted Burdette was frantic and terrified. Her hand was cut and

bleeding. Nelson radioed the description provided by Burdette and looked for the

suspect. Sgt. James Bryan of the Ohio State Highway Patrol heard Nelson’s dispatch

and went to the scene where Nelson was speaking with the victims. After obtaining

the description of the suspect and the general location of the robbery, Bryan went to

look for the suspect. He drove around the neighborhood for about 10 minutes when

he spotted appellant crossing State Route 39. Bryan had been looking for a man with

a backpack, which appellant was carrying. Bryan pulled up to appellant and grabbed

him. Appellant did not resist. Bryan relinquished custody of appellant at the scene to

the Mansfield Police Department, which ultimately handled the investigation and

arrest.

{¶8} Officer James Perry of the Mansfield Police Department asked appellant

if he had anything to do with the robbery and he denied it. Perry said he matched the Richland County, Case No. 12CA23 4

description provided, and testified at trial that the backpack appellant was carrying

contained Misty Taylor’s purse and some of her personal belongings.

{¶9} Sommer Burdette’s cash and personal items were never found, nor was

the knife.

{¶10} Burdette and Taylor were brought to the area where police were holding

appellant in a cruiser. They identified him as the man who robbed them. Officers

present for the identification noted appellant indicated he knew Taylor, referring to her

as his girlfriend and yelling at her to “tell the truth.”

{¶11} Appellee’s forensic evidence at trial included DNA testimony. Sommer

Burdette was the source of DNA found in a bloodstain on the backpack appellant was

found carrying and in a bloodstain found on appellant’s leather jacket.

{¶12} Appellant testified on his own behalf at trial. He claimed he knew Misty

Taylor and that she had contacted him to buy drugs from his friend “Deshawn.”

“Deshawn” contrived to rob Misty and the other girl, unbeknownst to appellant. When

appellant found out about the robbery, he recovered Misty Taylor’s items with the

intention of returning them to her. He claimed police would not listen to his story,

Misty Taylor would not confirm it, and “Deshawn” took off for Detroit so he would not

be implicated in the robbery.

{¶13} Appellant was charged by indictment with two counts of robbery, two

counts of theft, and one count of felonious assault. He entered pleas of not guilty and

the case proceeded to trial by jury. Appellant was found guilty as charged, and the

trial court sentenced him to an aggregate prison term of 7 years. Upon inquiry by

defense counsel, the trial court stated appellant was sentenced to concurrent four- Richland County, Case No. 12CA23 5

year terms on each robbery count, concurrent with two consecutive terms of six

months each for the thefts, consecutive with three years for the count of felonious

assault.

{¶14} Appellant now appeals from the judgment entry of conviction and

sentence.

{¶15} Appellant raises two Assignments of Error:

{¶16} “I. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF

COUNSEL IN VIOLATION OF MR. BOYD’S RIGHTS UNDER THE FIFTH, SIXTH,

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION

AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.

(STATEMENT OF THE CASE AND FACTS; TR. 91-96, 98-159, 174-202, 205-44,

262-68, 273-94, 301-15.)”

{¶17} “II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR DURING

MR. BOYD’S SENTENCING HEARING IN VIOLATION OF R.C. 2941.25, R.C.

2929.14, R.C. 2929.18, R.C. 2929.19, AND R.C. 2947.23 AND IN VIOLATION OF

MR. BOYD’S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I,

SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION. (OCT. 6, 2011

INDICTMENT; FEB. 8, 2012 BILL OF PARTICULARS; FEB. 27, 2012 SENTENCING

ENTRY; FEB. 27, 2012 STATEMENT OF FACT; TR. 91-96, 98-129, 262-68, 273-77,

301-15.)” Richland County, Case No. 12CA23 6

I.

{¶18} In his first assignment of error, appellant argues he received ineffective

assistance of trial counsel with respect to a number of alleged errors.

{¶19} To succeed on a claim of ineffectiveness, a defendant must satisfy a

two-prong test. Initially, a defendant must show that trial counsel acted incompetently.

See, Strickland v. Washington,

,

(1984). In assessing

such claims, “a court must indulge a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’”

, citing Michel v. Louisiana,

,

(1955).

{¶20} “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in

the same way.” Strickland,

. The question is whether counsel acted

“outside the wide range of professionally competent assistance.”

.

{¶21} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different.” Strickland,

.

{¶22} When counsel's alleged ineffectiveness involves the failure to pursue a

motion or legal defense, this actual prejudice prong of Strickland breaks down into two

components. First, the defendant must show that the motion or defense “is Richland County, Case No. 12CA23 7

meritorious,” and, second, the defendant must show that there is a reasonable

probability that the outcome would have been different if the motion had been granted

or the defense pursued. See Kimmelman v. Morrison,

,

,

(1986); see, also, State v. Santana,

,

(2001), citing State v. Lott,

,

(1990).

{¶23} Appellant’s first instance of alleged ineffective assistance is counsel’s

failure to file a motion to suppress the search of appellant’s backpack and the

apparent show-up procedure incidentally described at trial in which Burdette and

Taylor identified appellant after his apprehension.

{¶24} Trial counsel's failure to file a suppression motion does not per se

constitute ineffective assistance of counsel. State v. Madrigal,

,

. Counsel can only be found ineffective for failing to file a motion to

suppress if, based on the record, the motion would have been granted. State v.

Lavelle, 5th Dist. No. 07 CA 130,

; State v. Cheatam, 5th Dist.

No. 06-CA-88,

. Furthermore, “[w]here the record contains no

evidence which would justify the filing of a motion to suppress, the appellant has not

met his burden of proving that his attorney violated an essential duty by failing to file

the motion.” State v. Drummond,

,

,

, quoting State v. Gibson,

,

(8th

Dist. 1980). See also, State v. Suiste, 5th Dist. No. 2007 CA 00252,

.

In addition, deficient performance cannot be demonstrated where the record fails to

disclose the circumstances surrounding the alleged Fourth Amendment violation. See,

e.g., State v. Tibbetts,

,

,

Richland County, Case No. 12CA23 8

(finding no violation of counsel's duty where record failed to reveal circumstances

surrounding police's seizure). Trial counsel's decision not to file a motion to suppress

may be a matter of trial strategy, including counsel's reasonable assessment of

whether such a motion is likely to succeed and recognition that filing a motion to

suppress has risks. Madrigal,

. Furthermore, in order to satisfy

the prejudice prong of the Strickland test, a defendant must demonstrate that there

was a reasonable probability that the motion to suppress would have been granted.

See, e.g., State v. Fair, 2nd Dist. No. 24120, 2011–Ohio–3330, ¶ 27. See also

Kimmelman at 390–391.

{¶25} We disagree with appellant’s conclusory assertions that the search of

appellant’s backpack and the show-up procedure were constitutionally infirm. Given

the limited record, we cannot conclude that there is a reasonable probability that a

motion to suppress would have been successful. See, e.g., Fair at ¶ 27, 46.

Accordingly, appellant has not satisfied the second prong of the Strickland test and,

therefore, has not demonstrated that he received ineffective assistance of counsel

with respect to the failure to file a motion to suppress.

{¶26} Appellant next points to three comments by appellee to which defense

trial counsel raised no objection and which arguably comment upon the appellant’s

right to remain silent. In the context of the entire trial, we find defense trial counsel

was not deficient in failing to object to these statements. While these isolated remarks

may have been objectionable, counsel may have deliberately chosen not to object to

avoid drawing the jury's attention to the comments. Trial strategy and even debatable

trial tactics do not establish ineffective assistance of counsel. State v. Conway, 109 Richland County, Case No. 12CA23

, 2006–Ohio–2815, ¶ 101. Strategic choices made after substantial

investigation “will seldom if ever” be found wanting.

.

Moreover, the failure to object to error, alone, is not enough to sustain a claim of

ineffective assistance of counsel. State v. Crawford, 5th Dist. No. 07 CA 116, 2008–

Ohio–6260, ¶ 72, appeal not allowed,

, 2009–Ohio–5704, 915

N.E .2d 1255, citing State v. Fears,

,

(1999).

Ultimately we find no reasonable probability the outcome of the trial would have been

different had such objections been raised. See, State v. Graber, 5th Dist.

No.2002CA00014, 2003–Ohio–137, ¶ 154, appeal not allowed,

,

2004–Ohio–819,

.

{¶27} Finally, appellant cites trial counsel’s failure to object to (what he claims

are) flawed jury instructions. Appellant offers no authority for his assertion that the

jury instructions are in error, nor do we find any. More importantly, appellant cannot

prevail upon his ineffective assistance argument because we fail to see how the

outcome of the trial would have been different even if trial counsel had objected to the

jury instructions. Appellant again fails to satisfy the second prong of the ineffective

assistance test.

{¶28} We find appellant did not receive ineffective assistance of trial counsel

and therefore overrule his first assignment of error.

II.

{¶29} In his second assignment of error, appellant raises a number of

sentencing errors. We will address each individually. Richland County, Case No. 12CA23 10

Allied Offenses of Similar Import

{¶30} With respect to victim Sommer Burdette, appellant was indicted upon,

convicted of, and sentenced upon one count of robbery pursuant to R.C.

2911.02(A)(1) and one count of felonious assault pursuant to R.C. 2903.11(A)(2).

Appellant argues the trial court committed plain error when it failed to merge these

offenses for purposes of sentencing; we disagree.

{¶31} R.C. 2941.25 states as follows:

(A) Where the same conduct by defendant can be

construed to constitute two or more allied offenses of

similar import, the indictment or information may contain

counts for all such offenses, but the defendant may be

convicted of only one.

(B) Where the defendant's conduct constitutes two or more

offenses of dissimilar import, or where his conduct results in

two or more offenses of the same or similar kind committed

separately or with a separate animus as to each, the

indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of

them.

{¶32} In State v. Johnson, the Ohio Supreme Court modified the test for

determining whether offenses are allied offenses of similar import.

, 2010–Ohio–6314. The Court directed us to look at the elements of the offenses

in question and determine whether or not it is possible to commit one offense and Richland County, Case No. 12CA23 11

commit the other with the same conduct. If the answer to such question is in the

affirmative, the court must then determine whether or not the offenses were committed

by the same conduct. If the answer to the above two questions is yes, then the

offenses are allied offenses of similar import and will be merged. If, however, the court

determines that commission of one offense will never result in the commission of the

other, or if there is a separate animus for each offense, then the offenses will not

merge according to Johnson, supra.

{¶33} With respect to victim Sommer Burdette, appellant was convicted of one

count of robbery pursuant to R.C. 2911.02(A)(1), which states in pertinent part, “No

person, in attempting or committing a theft offense or in fleeing immediately after the

attempt or offense shall…[h]ave a deadly weapon on or about the offender’s person or

under the offender’s control.” He was also convicted of one count of felonious assault

pursuant to R.C. 2903.11(A)(2), which states, “No person shall knowingly…[c]ause or

attempt to cause physical harm to another…by means of a deadly weapon or

dangerous ordnance.” We have previously found, under a Johnson analysis, it is

possible to commit robbery and felonious assault with the same conduct. State v.

Jones, 5th Dist. No. 10 CA 50,

, appeal not allowed,

,

,

. Here as in Jones, however, we must

answer the second step of the Johnson analysis in the negative: the evidence in this

case supports the conclusion appellant entered the car and put the knife to Burdette’s

neck to force her to give up her money and personal items, and then continued to hold

the knife against her neck to subdue her, to the extent that she tried to push it away,

seriously cutting herself and slicing nerves in her hand. Appellant’s actions thus Richland County, Case No. 12CA23 12

constituted both separate conduct and separate animus under these circumstances.

Appellant was properly convicted of and sentenced upon both counts.

{¶34} We reach a different result under Johnson when we turn to appellant’s

next argument, however. With respect to both victims Sommer Burdette and Misty

Taylor, appellant was convicted of two counts each of robbery pursuant to R.C.

2911.02(A)(1), supra, and theft pursuant to R.C. 2913.02(A)(1) [“No person, with

purpose to deprive the owner of properly or services, shall knowingly obtain or exert

control over either the property or services…[w]ithout the consent of the owner or

person authorized to give consent.”] Appellant argues robbery and theft are allied

offenses of similar import under these circumstances, and should have merged for

sentencing. Appellee concedes the robbery and theft offenses should have merged

for purposes of sentencing and on that basis we remand for resentencing.

Consecutive Prison Terms

{¶35} Appellant contends he should not have been sentenced to consecutive

prison terms, and we agree. 2011 Am.Sub.H.B. No. 86, which became effective on

September 30, 2011, revived the language provided in former R.C. 2929.14(E) and

moved it to R.C. 2929.14(C)(4). The revisions to the felony sentencing statutes under

2011 Am.Sub.H.B. No. 86 now require a trial court to make specific findings when

imposing consecutive sentences. R.C. 2929.14(C)(4) provides, in relevant part:

(4) If multiple prison terms are imposed on an offender for

convictions of multiple offenses the court may require the offender

to serve the prison terms consecutively if the court finds that the

consecutive service is necessary to protect the public from future Richland County, Case No. 12CA23 13

crime or to punish the offender and that consecutive sentences

are not disproportionate to the seriousness of the offender's

conduct and to the danger the offender poses to the public, and if

the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a

sanction imposed pursuant to section 2929.16, 2929.17, or

2929.18 of the Revised Code, or was under post-release control

for a prior offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or

more of the multiple offenses so committed was so great or

unusual that no single prison term for any of the offenses

committed as part of any of the courses of conduct adequately

reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from

future crime by the offender.

{¶36} In Section 11, the legislature explained that in amending former R.C.

2929.14(E)(4), it intended “to simultaneously repeal and revive the amended language

in those divisions that was invalidated and severed by the Ohio Supreme Court's

decision in State v. Foster,

(2006).” The General Assembly further

explained that the amended language in those divisions “is subject to reenactment Richland County, Case No. 12CA23 14

under the United States Supreme Court's decision in Oregon v. Ice,

(2009), and the Ohio Supreme Court's decision in State v. Hodge, ––– Ohio St.3d –––

–, Slip Opinion No.2010–Ohio–6320 (2010).” Thus, it is the legislature's intent that

courts interpret the language in R.C. 2929.14(C)(4) in the same manner as the courts

did prior to State v. Foster,

, 2006–Ohio–856,

.

{¶37} We have consistently stated that the record must clearly demonstrate

that consecutive sentences are not only appropriate, but are also clearly supported by

the record. See, State v. Fauntleroy, 5th Dist. No. CT2012–0001, 2012–Ohio–4955;

State v. Bonnell, 5th Dist. No. 12CAA3022, 2012–Ohio–515. Our review on appeal of

any subsequent resentencing will be directed at looking at the entire trial court record

to determine if that record supports the trial court's findings that the R.C. 2929.14(C)

factors were met. See, State v. Alexander, 1st Dist. Nos. C–110828, C–110829,

2012–Ohio–3349, ¶ 18; State v. Frasca, 11th Dist.2011–T–0108, 2012–Ohio–3746, ¶

57.

{¶38} In this case, findings supporting consecutive sentences were not made

on the record at the sentencing hearing. The trial court’s sentencing entry is a

checklist form with boxes to be marked, and although the trial court checked the

findings for R.C. 2929.14(C)(4)(b), the initial findings under R.C. 2929.14(C)(4) are not

marked. While this appears to be a scrivener’s error that, standing alone, might not

ordinarily merit remand, under the unique circumstances of this case we find the trial

court did not properly impose consecutive sentences and so remand the matter for

resentencing on that basis as well. Richland County, Case No. 12CA23 15

Restitution and Court Costs

{¶39} Finally, appellant challenges the trial court’s orders with respect to

restitution and court costs, and appellee concedes those were ordered without

consideration of the proper statutory factors. We therefore remand this matter for

consideration of appellant’s present and future ability to pay restitution and imposition

of court costs in open court.

{¶40} Appellant’s second assignment of error is sustained in part and overruled

in part.

{¶41} The judgment of the Richland County Court of Common Pleas is

therefore affirmed in part and reversed in part, and this matter is remanded for

resentencing.

By: Delaney, P.J. and

Farmer, J. concur;

Hoffman, J. concurs in part and dissents in part.

HON. PATRICIA A. DELANEY

HON. WILLIAM B. HOFFMAN

HON. SHEILA G. FARMER Richland County, Case No. 12CA23 16

Hoffman, J., concurring in part and dissenting in part ASSIGNMENT OF ERROR I

{¶42} I concur in the majority’s analysis and disposition of that portion of

Appellant’s first assignment of error as it pertains to the show-up procedure and jury

instructions.

{¶43} I concur in the majority’s decision to overrule that portion of Appellant’s

first assignment of error asserting an ineffective assistance of counsel claim based

upon his counsel’s failure to file a motion to suppress evidence derived from the

search of Appellant’s backpack. I agree with Appellee there is not enough evidence in

this record regarding the search of Appellant’s backpack to determine whether a

suppression motion would be viable in this case, and the proper remedy is post

conviction review. (Appellee’s brief at p.5). As such, I write to note I do not believe

our overruling of this claim would necessarily bar future review of this issue under res

judicata principles.

{¶44} As to Appellant’s argument claiming ineffective assistance of counsel for

failing to object to the prosecutor’s comment upon his right to remain silent, I also

concur in the majority’s decision to overrule this claim. However, I do not believe

counsel’s failure to do so can be defended as trial strategy. While the majority

concludes the prosecutor “arguably” commented on Appellant’s right to remain silent, I

conclude the comments were improper. Nevertheless, I agree to overrule this claim

because I find there is no reasonable probability the comments changed the outcome

of the trial. Richland County, Case No. 12CA23 17

ASSIGNMENT OF ERROR II

{¶45} I respectfully disagree with the majority’s conclusion robbery and

felonious assault were not allied offenses under the facts of this case.

{¶46} The majority finds Appellant’s actions [emphasis added] constituted both

separate conduct and separate animus. (Majority Opinion at ¶33). While I find

separate conduct was involved, it was conduct by two different actors. Appellant’s

conduct was holding the knife to the victim’s neck during the commission of the

robbery. The victim’s act of pushing the knife away resulting in the injury to her hand

does not constitute separate conduct on Appellant’s part. Based upon these

circumstances, I do not agree with the majority’s conclusion Appellant’s actions

constituted both separate conduct and separate animus.

{¶47} Lastly, I concur in the majority’s analysis and decision to sustain

Appellant’s claim the record fails to affirmatively demonstrate the trial court made the

requisite findings necessary to impose consecutive sentences and also to reverse and

remand the trial court’s order with respect to restitution and court costs.

_______________________________ HON. WILLIAM B. HOFFMAN [Cite as State v. Boyd,

.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : GAVON J. BOYD : : : Case No. 12CA23 Defendant-Appellant :

For the reasons stated in our accompanying Opinion on file, the judgment of the

Richland County Court of Common Pleas is affirmed in part, reversed in part, and

remanded for further proceedings consistent with this Opinion. Costs assessed

equally between appellant and appellee.

HON. PATRICIA A. DELANEY

HON. WILLIAM B. HOFFMAN

HON. SHEILA G. FARMER